Christian Tomuschat, former head of the UN International Law Commission

Christian Tomuschat, former head of the UN International Law Commission

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The US decision to recognize Jerusalem as Israel’s capital has been condemned as illegal around the world – even by America’s own allies. What will this mean for the Israeli-Palestinian conflict? Former head of the UN International Law Commission Christian Tomuschat is our guest.

Sophie Shevardnadze: Christian Tomuschat, former head of the UN International Law Commission, welcome to the show. It's great to have you on our programme. Mr. Tomuschat, Trump’s move to recognise Jerusalem as the capital of Israel goes against the UNSC resolutions that the US itself supported - tell me, can the USA go against legally binding decisions that it has backed?

Christian Tomuschat: The Security Council didn’t pass any legally binding decisions on Jerusalem. But there are many resolutions of the Security Council which focus on Jerusalem. One of those resolutions was backed in the past by the United States. This resolution said that all the measures aiming to incorporate Jerusalem into the Israeli territory were ‘null and void’. And this was also, as I said, backed by the United States in 1971. This resolution 298 of 1971 was very important. And we also have the advisory opinion of the International Court of Justice which says that Jerusalem is Jerusalem, still not part of Israel and is an occupied territory. This is what the International Court of Justice said, and I think, this is the highest authority in the field of international law.

SS: If this whole situation, all these actions are illegal, can the Palestinians go to some sort of a court that would reassure their right to East Jerusalem, for example? What kind of a court would that be?

CT: Well, this is very difficult. There is the International Court of Justice that already in 2004 pronounced itself on the status of the wall, in particular, which was constructed by Israel on the Palestinian territory. And I think, we have no other court, there’s the International Court of Justice. It might well be that another advisory opinion could be requested by the General Assembly. For example, the General Assembly requested an advisory opinion from the International Court of Justice in the past. The first one was on the wall and the second one could be on the status of Jerusalem.

SS: So, as we established, Trump’s move is contrary to international law, which doesn’t recognise Israel’s sovereignty over all of Jerusalem. But those accusations of illegality don’t stop anything?

CT: The question is - how can the actions which are incompatible with the international law be stopped? This is, you know, the general weakness of the international law. International law has no police force, no army. It relies on the voluntary compliance of the states with the rule of law. In this regard, unfortunately, Israel is not very good, to say it fairly.

SS: The UN General Assembly had a vote on the US decision. US envoy to UN Nikki Haley said President Trump are taking the UN vote very personally. And the president himself said he’ll cut off financial aid to countries who vote against his decision. Will Washington achieve anything by threats here?

CT: The United States should not act by pressure and coercion on other states. This is not fair and not compatible with sovereign quality of states. States must be able to pronounce themselves freely in the General Assembly of the United Nations and take their decisions freely without an outside hindrance. If President Trump takes it personally it’s a bad parameter, it’s not a personal matter between him and the Palestinians. He’s the President of the United States and he should take care of the interests of the United States and also Israel. I think, we should take care of the long-term interests of the Jewish people who have an interest in peace and stability in the Middle East.

SS: How unprecedented is this move by Haley, sending a memo to 180 countries, basically, instructing them how to vote? Does this happen all the time in today’s UN?

CT: As the head of state you can always suggest other countries that they should vote in a specific sense. It’s a result of your freedom of a sovereign country to establish contact with other countries, with your friends, persuade them to vote in a specific sense but there should be no pressure. The threat of interrupting financial assistance is very inconvenient...

SS: Yes, it does seems like Washington thinks it runs the United Nations, no?

CT: Yes, in a way that seems to be the case. But Washington, of course, cannot run the United Nations. That’s the community of 193 nations. The United States has the permanent seat in the Security Council but that doesn’t make the United States the master of the United Nations. That’s very clear. There must be agreement and we have to seek consensus within the United Nations. So Washington, of course, is not the master of the United Nations.

SS: Jerusalem Embassy Act has been the U.S. law since 1995. But U.S. presidents from Bill Clinton to Barack Obama decided to postpone the actual moving of the embassy not to jeopardize the shaky Middle East talks. The Israeli-Palestinian peace talks are at the same stalemate for, like, 20 years now, why take this decision now?

CT: We have to realize that the occupied territories now exist for 50 years. I think it’s time for the Palestinians to assert their right to self-determination which also has a territorial component. I think, the international community as a whole must make an effort to bring peace to the Middle East. And this is in the interests not only of Palestinians but Israelis who also have a true interest in peace and stability in the Middle East. But such measures, like those taken by Trump, do not favour stability and peace in Jerusalem.

SS: Exactly, seeing how sensitive and inflammatory the issues of East-West Jerusalem are, why would Washington go ahead and do something that causes this explosion of passions? The American decision actually ends up endangering the security of its ally Israel…

CT: It’s a very bad moment and the peace process might be killed now forever. There must be some solution, that’s very clear. It’s an inappropriate moment. I think, Trump is lacking good advisors who would advise him on reasonable policies with regard to Palestine, Israel and Jerusalem, in particular.

SS: Trump has said he’s fulfilling a campaign promise given to his electorate - so is this move about votes in the American election, really, and not about the situation in Israel-Palestine, is Trump pleasing his voters at the expense of peace in the Middle East?

CT: Well, you shouldn’t really engage in foreign policy with regard to your national electorate. International policies shouldn’t be dependent on the whims and fancies of the moments… I think, any state that has a role to play in the international politics has to seek consensus with other nations, which also have something to say on that matter, in a peaceful way.

SS: Why is the American opinion on the matter especially important? It’s more of a symbolic move than anything else, right?

CT: American opinion is important because the United States is a great power, a military power, in particular. The United States can do many things and other states may follow the example of the United States. If it’s a good example, of course, other states should follow it. But if it’s a bad example they should really keep the rules of the international law which are fairly clear. East Jerusalem, in particular, is not part of the Israeli territory. It’s under the international jurisdiction and the international community has decided that Palestinians have right of self-determination. This is very clear. And people that have the right of self-determination must also have a territory and a capital.

SS: The UN can pass endless resolutions condemning the U.S. move, it’s quite expected that the U.S. will veto all of them. The UN General Assembly’s decisions are non-binding as well. So does the UN have any political weight here? Can they really influence the United State to revert their decision?

CT: I think, in the long run this will prejudice the United States and its interests. The United States is visibly isolated on that issue. And if you a loner, if you act alone without the support of your allies and friends this will put you in a very difficult situation and in the long run, at least, will be very harmful to your own interests.

SS: I’m just wondering, why is the U.S. move creating so much controversy? It’s merely an assertion of what they’ve been saying for about 25 years. Besides, the Israeli government institutions have been in Jerusalem for decades, so it’s pretty much just an acknowledgment of fact...

CT: Well, you know, the situation is different. We shouldn’t speak generally of Jerusalem. There are two parts of Jerusalem: East Jerusalem and West Jerusalem. East Jerusalem is an occupied territory as determined by the International Court of Justice. East Jerusalem is not an Israeli state territory, it has an international status and according to the principle of self-determination it should be attributed to Palestine and should be the base of the capital for Palestinians.

SS: The EU’s Federica Mogherini has vowed the bloc’s consolidated approach towards the two-state solution to the Israeli-Palestinian problem with Jerusalem being the capital for both. Do you think, the EU is heading towards recognising the state of Palestine?

CT: That might well be the case, but I’m not aware of any moves towards that. And, I think, there should be a negotiation proсess. Trump’s ill-reflected decision could really stimulate a negotiation process. Now there’s so much talk, so much discussion of the Jerusalem situation that could also have a positive effect because people realize that Jerusalem is not just an object the status of which can be determined unilaterally by one state - the United States - which has no power over the whole region, over Israel and Palestine. The United States is an alien country, a third country which has no decisive role to play from a legal viewpoint.

SS: The foreign policy spokesman for the German Christian Democratic Union Karl Lamers says Middle East - or the Near East - is called that way not because it’s close to the United States, but because it’s near Europe. With the US policy in the region becoming erratic and unpredictable, can the EU step in and do the job?

CT: This would be highly recommended, but I think, unfortunately, under the present conditions EU wouldn’t be effective enough, it’s not respected as a big power by both sides. Unfortunately, we have a common foreign policy but it’s not supported consensually by all member states. That’s a very difficult bone of contention. And, unfortunately, the European Union doesn’t have a unified viewpoint on the issue of Jerusalem.

SS: Who could be the most efficient at making the Israelis talk to the Palestinians fruitfully - since the US is acting too much on the Israeli side, and the Arab states are too anti-Jewish?

CT: I think, there should be a meeting of those powerful actors, among them I count Russia. Russia could play a role also. I don’t know if China would like to meddle in these matters because the Middle East is a powder keg for China. They are always very remote from the Middle East and don’t like to interfere in these matters. But it’s something for the Europeans, Turkey also. Maybe the European Union will be able to reach a common position on the Middle East in the long run, at least, in the next month because now it is urgent to come to some conclusions.

SS: Lebanon and Turkey are already considering setting up their Palestinian embassies in East Jerusalem in response to Trump’s move. Can other Arab states follow suit, will this have a domino effect?

CT: This I don’t know. There are so many tensions in the Arab world. Turks and Arabs are not always of the same opinion. But huge efforts should be deployed because it’s really a powder keg. There could be some explosions that could even lead to war one day. Nobody wants that. And I want to come back to my position: the long-term interests of the Jewish people are peace and stability in the region. Therefore, you need peace and some kind of consensus with your neighbours. That’s important to live as a good neighbour among neighbours.

SS: Israel’s intelligence minister has invited a Saudi Crown Prince to the country, to facilitate and oversee the continuation of the peace process. Can Saudi Arabian influence make a difference? Will this unlikely collaboration between Israel and the Saudis last?

CT: I think, Saudi Arabia is one of those actors who should engage with best efforts in that negotiation process. And I would very much count on Saudi Arabia among other actors. They should all come together and push the Palestinians and the Israelis and and there should be no place for extremists who want 100%-solution for themselves neglecting the interests of the others. When you negotiate you also have to take into account the interests of the partner with whom you’re negotiating. That’s very important. One-sided measures cannot lead to good results.

SS: Hamas has replied to Trump’s move with a declaration of an intifada - an uprising against Israel. Will there actually be one or is it just Hamas’s PR?

CT: Well, intifada… I think, it’s an act of despair because Palestinians, unfortunately, have to acknowledge that the peace process isn’t making progress. It has stalled. What can they do? Their diplomatic opportunities are very limited. So I think intifada is almost a cry of despair. When people throw stones there is nothing constructive. But if you are in such a bad position, when you see no light at the end of the tunnel, there’s only dark in the tunnel… We need constructive initiatives from many statespeople in the world. As I said, I would also invite the United States to revisit their declaration and maybe come together with Russia, Turkey, Saudi Arabia and others to bring peace and stability to the Middle East.

SS: Hamas rules in Gaza, but Fatah and its President Abbas rule in the West Bank - and are internationally recognised. Will Abbas support an intifada?

CT: I think, as a responsible Palestinian statesman he would always look for negotiations, for agreement and consensus. But that must be offered to the Palestinian leaders.There must be a hand that extends to them and tells them that there’s a viable route to peace. This is what they need. I don’t think they are aggressive by nature. They want to live, they want the right to exist in their territory without being controlled. They are not well-treated by Israel. To be all the time under control of Israel is not pleasant, and it is unacceptable for a nation to be subjugated in a way. It’s foreign rule under which they are placed. They should have very soon their own rule and be free to make their determinations on their own fate.

SS: Another aspect of the subject is that the number of Israeli settlements on the territory of the Palestinian authority is growing - and they’re so intertwined with Palestinian towns that imagining an actual independent Palestinian state is very hard right now. Is there anything that can make Israel withdraw its settlements from the West Bank?

CT: That’s so difficult because we have the experience of Israel’s withdrawal from the Gaza Strip. The settlers fought violently against the withdrawal of the Israeli rule from the Gaza Strip. And now removal of all Israeli settlements from the West Bank seems almost impossible. Some solution must be found. Maybe these people will be then in the Palestinian territory under the Palestinian authority. For them it would be hard to accept (would there be a solution for them to accept) that these territories and the settlements also, are ruled by the Palestinian institutions and by the Palestinian government. Why not, if it’s a government under the rule of law? This could be accepted. But there must be, of course, the government under the rule of law without any revenge or violence. It’s imaginable if good will prevails.

SS: Mr. Tomuschat, isn’t the settlement issue, in essence, a lot more important to the conflict than the status of Jerusalem?

CT: The settlement issue is extremely important. The recognition of Jerusalem as the capital of Israel brings everything into focus. And the fact that the settlements are growing is very worrying. I can recall in this connection again the advisory opinion of the International Court of Justice which says that these settlements are unlawful under the international law. No doubt about it. This is what the International Court of Justice said and we have to respect it.

SS: Thank you very much for this interview. We were talking to Christian Tomuschat, former head of the UN International Law Commission about the repercussions of the U.S. recognition of Jerusalem as Israel's capital. That's it for this edition of SophieCo. I'll see you next time.